Torts and Terrorism

Robert Novak

2/18/2008 12:01:00 AM - Robert Novak

WASHINGTON, D.C. -- A closed-door caucus of House Democrats last Wednesday took a risky political course. By four to one, they instructed Speaker Nancy Pelosi to call President Bush's bluff on extending the Foreign Intelligence Surveillance Act (FISA) to continue eavesdropping on suspected foreign terrorists. Rather than passing the bill with a minority of the House's Democratic majority, Pelosi obeyed her caucus and left town for a 12-day recess without renewing the government's eroding intelligence capability.

Pelosi could have exercised leadership prerogatives and called up the FISA bill to pass with unanimous Republican support. Instead, she refused to bring to the floor the bill approved overwhelmingly by the Senate. House Democratic opposition included left-wing members typified by Rep. Dennis Kucinich, but they are but a small faction. The true cause for blocking the bill was the Senate-passed retroactive immunity from lawsuits for private telecommunications firms asked to eavesdrop by the government. The nation's torts bar, vigorously pursuing such suits, has spent months lobbying hard against immunity.

The recess by House Democrats amounts to a judgment that losing the generous support of trial lawyers, the Democratic Party's most important financial base, is more dangerous than losing the anti-terrorist issue to Republicans. Dozens of lawsuits have been filed against the phone companies for giving personal information to intelligence agencies without a warrant. Adm. Mike McConnell, the nonpartisan director of national intelligence, says delay in congressional action deters cooperation in detecting terrorism.

Big money is involved. Amanda Carpenter, a Townhall.com columnist, has prepared a spreadsheet showing that 66 trial lawyers representing plaintiffs in the telecommunications suits have contributed $1.5 million to Democratic senators and causes. Of the 29 Democratic senators who voted against the FISA bill last Tuesday, 24 took money from the trial lawyers (as did two absent senators, Hillary Clinton and Barack Obama). Eric A. Isaacson of San Diego, one of the telecommunications plaintiff's lawyers, contributed to the recent unsuccessful presidential campaign of Sen. Chris Dodd, who led the Senate fight against the bill containing immunity.

The bill passed the Senate 68 to 29, with 19 Democrats voting aye. They included Intelligence Committee Chairman Jay Rockefeller and three senators who defeated Republican incumbents in the 2006 Democratic takeover of Congress: Claire McCaskill of Missouri, Jim Webb of Virginia and Sheldon Whitehouse of Rhode Island.

That opened the door for Pelosi to pass the bill with minority Democratic support. A Jan. 28 letter to the speaker signed by 21 House Blue Dogs (moderate Democrats) urged passage of Rockefeller's bill containing immunity. Democrats supporting it could exceed 40 in a House vote, easy enough for passage.

Instead, the Democratic leadership Wednesday brought up another bill simply extending FISA authority, this one for 21 days. Republicans refused to go along because it did not provide phone companies with the necessary immunity. It still could have passed with support from Democrats only, and the leadership surely thought that would happen when it was brought to the floor Wednesday. But it failed, 229 to 191, with 34 Democrats voting no despite pleas for support from their leaders. The opponents included three congressmen who signed the letter to Pelosi advocating immunity from lawsuits, but most were Kucinich Democrats who intuitively vote against any anti-terrorist proposal.

Clearly, opposition to the Rockefeller bill shown in the subsequent House Democratic caucus derived less from Kucinich's phobia to tough anti-terror countermeasures than obeisance to generous trial lawyers. Pelosi had to decide whether to pass the bill with a minority of her party, which can be dangerous for any leader of a House majority. In October 1998, Republican Speaker Newt Gingrich passed the Clinton administration's budget with 30 percent Republican support, less than a month before GOP losses in midterm elections forced his resignation from Congress.

Nothing will be done until the House formally returns Feb. 25, and the adjournment resolution was constructed so that Bush cannot summon Congress back into session. Last Friday morning, debating two backbench Republicans on a nearly deserted House floor, Majority Leader Steny Hoyer said there was no danger in letting the FISA legislation lapse temporarily. Democrats hope that will be the reaction of voters, as Republicans attack what happened last week.